Case
Law Update - October 2017 - December 2017
October 2017 - December 2017
Injury Not Compensable Because Claimant Made Multiple Inconsistent Statements
of How and When Injury Occurred and Failed to Establish Injury Was Caused by a
Compensable Accident
Appeal Transferred to Missouri Supreme Court to Determine Whether Applying
Mesothelioma Statute to Claim with Last Exposure in 1990 Violates Missouri
Constitution
Boatright is the Employer Because He Had Authority to Hire/Fire, Assign Driving
Routes, and Determine Payment, and FFE is a For Hire Motor Carrier
Court Affirms Commission’s Decision and Award Finding that Claimant’s Work
Conditions Were Not the Prevailing Cause of His Heart Attack and Death
Employer Responsible for Unauthorized Treatment Claimant Underwent During
the Four Weeks Between the Date She Filed a Claim Demanding Additional
Treatment and the Date She Was Evaluated by Employer’s Doctor
Employer Liable for PTD Because Claimant Was Sleep Deprived Due to Pain and
Had to Nap Several Times Per Day, Despite Fact that He Slept At Least Eight Hours
Per Night and Did Not Take Any Medications to Attempt to Alleviate His Sleep
Issues
Employer Responsible for PTD After Claimant Sustained Multiple Fractures to Bilateral Lower Extremities After Falling 25 Feet, Which Required Him to Spontaneously Recline Throughout the Day and Caused Sleep and Concentration Difficulties
Fund Liable for PTD Because Prior Low Back Injury Caused Primary Low Back Injury to be More Severe Than Otherwise Would Have Been
Fund Liable for PTD Benefits After Claimant Forced to Change Jobs Following Prior Low Back Injury and Reported Ongoing Back Pain Prior to Primary Injury
Fund Not Liable for PTD Benefits Because Claimant PTD As a Result of Her
Pre-xisting, Non-Work-Related Low Back Condition Considered Alone
Fund Liable for PTD Because Claimant Unemployable Due to Primary Injury
Combined with Pre-Existing Right Leg Injury, Anxiety/Depression, and Need to Lie
Down Throughout Day
Commission Decision Finding Fund Liable for PTD Benefits Supported by the
Record Because Claimant’s Expert Testified He Was PTD and Employer’s Expert
Testified He Had a Pre-Existing Disability
Claimant Not Entitled to Enhanced Benefits Under 287.200.4(3), Because Employer
Went Out of Business More than Fifteen Years Prior to When the Statute Became
Effective on January 1, 2014 and Could Not Have Elected to Accept Mesothelioma
Liability
|
Simon Law Group, P.C.
720 Olive Street, Suite 1720, St. Louis, MO
63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW
UPDATE
October 2017 – December 2017
Injury Not Compensable Because Claimant
Made Multiple Inconsistent Statements of How and When Injury Occurred and
Failed to Establish Injury Was Caused by a Compensable Accident
Saine vs. Pepsi Beverages Company, Injury No. 15-069886
The claimant
alleged he sustained an injury to his neck and right arm while driving a tractor
trailer in August 2015. His first Claim
for Compensation alleged an injury to his right shoulder and arm that occurred
on August 31, 2015. He subsequently
amended the claim three times to allege injury to his neck, changed the date of
injury to August 25, 2015, and then changed the date of injury back to August
31, 2015. The claimant testified at a
Hearing that the injury actually occurred on August 15, 2015.
The claimant
also made inconsistent statements regarding how the injury occurred. He told a nurse at work that his right
shoulder pain was caused by tight steering in his work truck. He went on his own on September 10, 2015 to
the hospital and reported right shoulder pain following a lifting injury. On May 3, 2016, he reported to Dr. Rutz that
he sustained an injury by repeatedly backing into loading docks and twisting
his body when unloading products off of his truck and then his symptoms became
irritated when a car cut in front of him and he tried to avoid the collision.
At a Hearing,
the ALJ found that the claimant failed to establish that his complaints were a
result of an injury that he sustained as a result of an accident arising out of
and in the course of his employment. The
Judge noted that an accident is an unexpected traumatic event or unusual strain
identifiable by time and place of occurrence and producing at the time
objective symptoms of an injury caused by a specific
event during a single work shift.
The ALJ noted that the claimant made multiple inconsistent statements regarding
how and when the injury occurred and there was no relevant objective evidence
of an issue with his work truck. Also, the
employer’s experts testified that none of the three possible versions given by
the claimant of how his injury occurred would have caused his injury. Therefore, the ALJ found there was no single
identifiable traumatic event or unusual strain that occurred during single work
shift, and the claimant failed to show that his injury was caused by a
compensable accident. On appeal, the
Commission affirmed the ALJ’s decision and Award denying benefits.
Appeal Transferred to Missouri Supreme Court to
Determine Whether Applying Mesothelioma Statute to Claim with Last Exposure in
1990 Violates Missouri Constitution
E.J. Cody Company, Inc. vs. Casey, Case No. WD80470 consolidated with WD80481 and
WD80525 (Mo. App. 2017)
FACTS: The claimant
worked as a flooring installer applying vinyl asbestos tile from 1984 until
April 1990, when he retired. He was
diagnosed with mesothelioma on October 14, 2014 and died from the same on
October 11, 2015. His diagnosis and the
fact that mesothelioma was the prevailing cause of the claimant’s death was not
at issue. The insurer provided the
employer with workers’ compensation insurance with a mesothelioma endorsement,
which was in effect as of the date the claimant was diagnosed with mesothelioma.
At a Hearing,
the insurer argued that it was not responsible for paying benefits because the
claimant was exposed to asbestos prior to the beginning of its insurance
coverage and the responsible party was the insurer in 1990. However, the ALJ found that under the statute
dealing with mesothelioma benefits, the date of diagnosis determines what
insurer is liable for benefits under the statute, and reasoned that the
provision in the insurance policy stating that the exposure must occur during
the policy period is essentially voided by the endorsement, which provided
coverage for mesothelioma benefits. On
Appeal, the Commission modified the Award but ultimately agreed that the
insurer was responsible for paying benefits. The Commission agreed with the ALJ
that the insurer’s mesothelioma endorsement applied to this claim because the
date of diagnosis was after the amendments, which went into effect on January
1, 2014, and the claimant was diagnosed with mesothelioma during the insurer’s
policy.
On Appeal,
both the insurer and employer argued that application of the new mesothelioma
statute to the present case violated the Missouri Constitution’s prohibition
against retrospective laws because the employee’s last exposure to the hazard
predated the statute’s effective date of January 1, 2014.
HOLDING:
The Missouri Court of Appeals held that the Missouri Supreme Court had
exclusive jurisdiction over this appeal in light of the constitutional issues
raised, and it transferred the appeal to the Missouri Supreme Court.
Boatright is
the Employer Because He Had Authority to Hire/Fire, Assign Driving Routes, and
Determine Payment, and FFE is a For Hire Motor Carrier
Parr vs. Bobby Boatright and Frozen Food Express a/k/a FFE
Transportation Services, Inc., Injury No. 08-124297
Boatright was a sole proprietor who owned trucks that
he leased to FFE to transport frozen or refrigerated food between Chicago and
Dallas. The contract provided that
Boatright would supply drivers at his own expense who met requirements imposed
by FFE’s liability insurance carrier and Federal Law. Boatright did the hiring and firing and paid
the drivers. FFE did not control the
routes the drivers took to deliver or pick up loads, did not determine which
driver was assigned to the route, and did not control the amount or frequency
of payment to any driver. On February
16, 2008, the claimant was driving his assigned route as an OTR truck driver
when he was involved in a motor vehicle accident in Missouri.
At the
Hearing, the issue was the claimant’s employer. The ALJ found that Boatright was the employer,
not FFE, and noted that Boatright had the right to hire and fire, determine the
amount and frequency of payment, assign routes, provide the trucks and maintain
the same. Additionally, because FFE was
a for-hire motor carrier operating within a commercial zone, it was not a
statutory employer of claimant under workers’ compensation law. With respect to permanency, the ALJ did not
find Boatright responsible for the same because the claimant did not hit his
head or lose consciousness in the accident and did not seek treatment for three
weeks after the accident, the damage to the vehicle was minimal, and there was
no evidence suggesting that the work accident was the prevailing factor in
causing any medical condition related to his current complaints. The ALJ denied payment of PTD, TTD, PPD, or
future medical. On Appeal, the
Commission affirmed the ALJ’s Decision and Award.
Editor’s Note: At the Hearing, the ALJ also found that
under strict construction, 287.210.3 and 287.210.7 only apply to physician
testimony. Therefore, certified
treatment records that are not offered as a substitute for an expert’s
testimony would still be admissible, even if not provided to all parties at
least seven days in advance of a Hearing.
Court Affirms Commission’s Decision and Award Finding
that Claimant’s Work Conditions Were Not the Prevailing Cause of His Heart
Attack and Death
White vs. ConAgra Packaged Foods LLC, Case No. SC96041 (Mo. Sup. Ct. 2017)
FACTS: The claimant
worked as a machinist before he died on June 30, 2012 while at work. His autopsy showed severe coronary artery
disease, and his death certificate listed his cause of death as acute
myocardial infarction and heart failure.
His surviving spouse filed for death benefits under workers’
compensation. Testimony established that
the claimant operated a lathe in a machine shop on the day of his death and the
weather was extremely hot. Dr. Schuman
testified on behalf of the surviving spouse and opined that the claimant’s work
was the prevailing factor in causing his death because the extreme heat
combined with the claimant’s physically demanding work duties and leg brace
placed added stress on his already strained heart. Dr. Farrar testified on behalf of the
employer that the claimant’s death was caused by his coronary artery disease
and other heart conditions and was not related to his work activities.
At a Hearing,
the ALJ found that the claimant’s surviving spouse failed to sustain her burden
of proof that the claimant sustained an accident or occupational disease, and
the claim was therefore not compensable.
On Appeal, the Commission affirmed the ALJ’s Award with a supplemental
opinion. The Commission found that the
claimant did suffer an accident because his death at work was an unexpected
traumatic event. However, the Commission
found there was no persuasive expert testimony on the issue of medical
causation and ruled that the claimant’s work was not the prevailing factor in causing his heart attack or death.
HOLDING:
The claimant’s surviving spouse appealed. The Court first held that the claimant
suffered an accident, which was the unusual strain placed on him due to the
extraordinary heat, and this accident resulted in an injury, which was his
death. The Court held that the next step
was to determine whether the unusual strain was the prevailing factor in causing the claimant’s heart attack and
death. The Court held that the
Commission properly applied the prevailing factor standard, deferred to the
Commission’s findings of fact with respect to the persuasiveness of expert
medical testimony, and affirmed the Commission’s decision and Award.
Employer Responsible for Unauthorized Treatment
Claimant Underwent During the Four Weeks Between the Date She Filed a Claim
Demanding Additional Treatment and the Date She Was Evaluated by Employer’s
Doctor
Boykins-Walls vs. Normandy School District, Injury No. 13-098181
The claimant,
a substitute teacher, sustained an injury to her bilateral knees on December 6,
2013, when she slipped and fell on ice while walking between buildings. She treated conservatively for contusions and
underwent physical therapy and was released from care on December 26,
2013. She proceeded to treat on her own
with Dr. Droege and then filed a Claim for Compensation demanding additional
treatment on January 15, 2014. The
employer directed her to Dr. Milne, and she was seen on February 10, 2014, just
four weeks later. She was placed at MMI
on April 1, 2014.
At a Hearing,
the ALJ found that although the claimant sustained an accident, she did not
sustain any permanent disability from the same.
The ALJ denied all benefits.
On appeal, the Commission modified the ALJ’s Award and
decision with respect to unpaid past medical expenses. The Commission found that the claimant was
not entitled to reimbursement for medical bills for any treatment she received
after the employer directed her to Dr. Milne for additional treatment. However, the Commission did award past
medical expenses for the treatment she underwent between the time she filed her
Claim on January 15, 2014 and when she was seen by Dr. Milne on February 10,
2014. The Commission reasoned that the
employer was notified of the claimant’s need for additional medical treatment
when she filed a Claim demanding the same.
It also reasoned that the treatment provided by Dr. Droege during that
period was reasonable and necessary and was consistent with the type of
treatment that both of the authorized treating physicians recommended and
ultimately provided. Therefore, the
claimant was entitled to compensation in the amount of $783.00, referable to
past medical expenses. Notably, the
Commission opined that brief delays in scheduling appointments, other than in
emergency situations, do not render an employer/insurer liable for unauthorized
care.
Editor’s
Note: Therefore, it appears the
Commission is suggesting that four weeks was too long to wait to schedule the
claimant for a follow up evaluation.
Employer Liable for PTD Because Claimant Was Sleep
Deprived Due to Pain and Had to Nap Several Times Per Day, Despite Fact that He
Slept At Least Eight Hours Per Night and Did Not Take Any Medications to
Attempt to Alleviate His Sleep Issues
Wann vs. The Lawrence Group, Injury No. 12-090608
The claimant,
a 59-year-old carpenter and high school graduate, developed bilateral upper
extremity pain, numbness, and tingling in November 2012. He underwent an arthroscopic surgery on the
right shoulder on July 22, 2013, which was performed by Dr. Ritchie, who placed
him at MMI, issued permanent lifting restrictions, and assessed 20% PPD of the
right shoulder. The claimant never
returned to work after surgery. Two
years later, the employer directed the claimant back to Dr. Ritchie, who also
diagnosed work-related chronic left shoulder impingement and probable labral
pathology, bilateral carpal tunnel syndrome, and left elbow mild ulnar nerve
neuropathy and opined the claimant would require carpal tunnel releases in the
future.
The claimant
was evaluated by Dr. Volarich, who noted that he awakened several times per
night due to shoulder pain, although he was not taking any pain medications to
alleviate the same, and the doctor recommended a vocational evaluation and
opined that if the claimant were PTD, it was due to the primary injury
alone. The claimant’s vocational expert,
Mr. England, opined that he was PTD as a result of his primary injury
alone. He noted that if claimant got an
adequate full night’s sleep, he would be a candidate for some jobs, but he
noted the claimant has sleep disturbance and takes no medication to help him
sleep. The employer’s vocational expert,
Ms. Abrams, opined the claimant was able to work in the open labor market, but
she admitted that if he did have to take several naps during the day, he may
not be able to find and maintain a job.
At a Hearing,
the claimant testified that he had sleep difficulties, although he slept over
eight hours per night. He testified that
he takes Ibuprofen a few times per month but no other pain medication. He had not worked since January 2013 and had
not looked for other employment besides one position at a family member’s
company. The ALJ awarded PPD at the
level of the bilateral shoulders and wrists but found that the claimant was not
PTD. The ALJ noted that although he was
not able to return to his former job as a carpenter, he had no ambulation
problems, no need for narcotic pain medication, and was able to perform
self-care. Although he had sleep
deficits, he was making no attempt to alleviate the same, and his sleep issues
were not noted in his treatment records, only in the expert reports. The ALJ also noted that the claimant was
articulate and had transferable skills and no memory problems.
On appeal,
the Commission opined it was plausible that someone with bilateral shoulder
injuries may have difficulty sleeping comfortably, and this was noted in Dr.
Volarich’s report. It found Dr.
Volarich’s opinion most persuasive and disagreed with the ALJ regarding the
claimant’s credibility in light of the opinions of Dr. Volarich and Mr.
England. The Commission held that the
claimant’s sleep difficulties rendered him PTD as a result of his primary
injury alone and found the employer responsible for PTD and future medical.
Editor’s Note: It
does not appear that the Commission addressed the ALJ’s rationale
that the claimant made no efforts to alleviate his sleep issues.
Employer
Responsible for PTD After Claimant Sustained Multiple Fractures to Bilateral
Lower
Extremities
After Falling 25 Feet, Which Required Him to Spontaneously Recline Throughout
The Day and
Caused Sleep and Concentration Difficulties
Sanchez-Rivera vs. Jorge Calderon Construction and
Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 10-059076
The claimant,
a 34-year-old construction worker, was working for employer on July 16, 2010,
at which time he fell 25 feet from a ladder.
Dr. Horton performed an ORIF of the bilateral tibial fractures on August
9, 2010 and two subsequent surgeries.
The claimant’s lumbar injuries were treated non-operatively. He was placed at MMI on August 18, 2011 but
was restricted to seated work only. The
claimant continues to undergo regular pain management. He did not return to work after his accident. He testified that he has to lie down
throughout the day due to his pain and is unable to support his weight on his
feet, sleep overnight, or concentrate due to his lack of sleep. He also now uses a cane.
At a Hearing,
the claimant testified that he completed the seventh grade in Mexico and never
returned to school, and he understands and speaks only a little English. He did not have a driver’s license or any
computer or typing skills.
The claimant
was evaluated by Dr. Koprivica, who opined he was PTD as a result of his last
injury alone. He recommended permanent restrictions of no working on uneven
surfaces, climbing activities, standing and walking for less than 20 minutes
only, sitting when necessary, and the ability to change positions frequently
when needed. Mr. Dreiling, a vocational
rehabilitation specialist, evaluated the claimant at the claimant’s attorney’s
request, and he opined the claimant was not a candidate for any type of formal
academic or vocational retraining because English was his second language and
he did not have a high school degree or GED and no transferable job
skills. He also opined that he would
find the claimant PTD as a result of his last injury alone due to his need to
spontaneously lie down throughout the day, even if his primary language was
English.
At a Hearing,
the ALJ found that the claimant was PTD because he testified credibly regarding
his need to lie down throughout the day, his use of narcotic pain medication,
and his lack of concentration and sleep. On appeal, the Commission affirmed the
ALJ’s decision and Award.
Fund Liable for PTD Because Prior Low Back Injury
Caused Primary Low Back Injury to be More Severe Than Otherwise Would Have Been
Branham
vs. Schrimpf Landscaping, Inc. and Treasurer of Missouri as Custodian of Second
Injury Fund, Injury Number 06-077118
The claimant, a man of unspecified age with a GED, was
working for the employer driving a tanker truck and operating a seed sprayer
when he sustained an injury to his low back on July 17, 2006. He underwent surgery to repair an annular
tear on May 10, 2007. He subsequently
underwent two additional low back surgeries, including a three-level fusion on
January 24, 2011 as well as a surgery to remove bone graft material from the
stomach wall on February 1, 2012. The
claimant has not worked since 2010.
The claimant previously sustained a low back injury in
2000 while working for a roofing company, after which he underwent surgery at
L5-S1 and resolved his claim for 16.1% PPD of the body referable to the low
back. He was unable to continue working
as a roofer following his injury due to lifting limits and ongoing back and leg
pain.
Dr. Volarich evaluated the claimant and opined that
his prior low back injury was a hindrance to his employment and he was more
disabled as a result of a combination of his two injuries because his lumbar
spine was weakened after the first injury, which caused his 2006 injury to be
more severe than it otherwise would have been.
Dr. Volarich opined the claimant was PTD as a result of a combination of
his 2000 and 2006 injuries. Vocational
experts Mr. Weimholt and Mr. Cordray agreed that the claimant was unemployable
as a result of a combination of both low back injuries. Mr. Hughes was the only rehabilitation
counselor to opine that the claimant was able to continue working, although he
noted that if the claimant were found PTD it would be as a result of both of
his low back injuries.
At a hearing, the ALJ found the employer responsible
for 45% PPD of the body referable to the low back as a result of the 2006 work
injury as well as future medical. The
ALJ also found the claimant was PTD as a result of a combination of both his
low back injuries. On Appeal, the
Commission affirmed the ALJ’s decision and Award with respect to permanency and
future medical, but they modified the Award with respect to the claimant’s TTD
and PTD rate.
Fund Liable for PTD Benefits After Claimant Forced to
Change Jobs Following Prior Low
Back Injury and Reported Ongoing Back Pain Prior to
Primary Injury
Sanderson
vs. Dolgen Corp., Inc. and Treasurer of Missouri as Custodian of Second Injury
Fund, Injury No. 09-108286
The claimant, a 65-year-old warehouse worker,
sustained an injury to his back on October 27, 2009 while working for the
employer. He treated on his own and
underwent physical therapy and an injection.
The claimant sustained a prior low back injury in
1998, which was settled for 11% PPD of the body referable to the lumbar
spine. Dr. Levy evaluated the claimant
and opined that he had 30% PPD to the body in 1998. It is not clear whether the claimant
underwent surgery for the 1998 injury, but he testified he was forced to leave
his job in security because he could no longer perform the physically demanding
job duties. He also testified that he
was unable to return to work for two years and continued to have intermittent
low back pain leading up to his primary injury.
The claimant was evaluated by Dr. Volarich, who
testified that he sustained 35% PPD to the body as a result of his primary
injury and was PTD as a result of a combination of his 1998 and 2009 back
injuries. Vocational experts Mr.
Weimholt and Mr. Cordray agreed with Dr. Volarich. Mr. England testified on behalf of the Fund
and opined that he was employable, although he agreed that the 1998 injury was
a hindrance to his employment.
At a hearing, the ALJ found the claimant PTD as a
result of a combination of his pre-existing low back injury and his primary
injury and ordered the Fund to pay PTD benefits. The ALJ also found the employer responsible
for 20% PPD of the body, past medical expenses, and future medical care. On Appeal, the Commission affirmed the ALJ’s
decision and Award.
Fund Not Liable for PTD Benefits Because
Claimant PTD As a Result of Her Pre-Existing, Non-Work-Related Low Back
Condition Considered Alone
Glasco vs. Treasurer of the State of
Missouri Custodian of the Second Injury Fund, Case No. WD80186 (Mo. App. 2017)
FACTS: On April 27,
2011, the claimant fell at work and injured her left knee and was diagnosed
with a strain. She treated with the
employer’s doctors and ultimately resolved her claim against the employer for
15% PPD of the knee.
The claimant had a significant pre-existing and
non-work-related condition in her low back, for which she treated with Dr.
Drisko. She underwent multiple back
surgeries prior to 2008 and then a fusion.
She was diagnosed with failed back syndrome and was referred to a pain
specialist and psychiatrist. She was
subsequently diagnosed with “Transition Syndrome” after she developed stenosis
over the site of her prior surgery. She
underwent additional injections. Dr.
Drisko took her off work in May 2010 for her low back condition, and she did
not return to work until April 12, 2011, at which time she returned to work
with restrictions. She then only worked
two weeks for the employer prior to sustaining her primary injury.
The claimant filed against the Fund for PTD
benefits. Dr. Zimmerman, the claimant’s
expert, opined she was PTD as a result of a combination of her primary injury
and pre-existing conditions. However, he
did not review all of the claimant’s prior medical records and did not have a
complete history of her prior treatment and disability. Mr. Dreiling also testified on behalf of the
claimant, and on cross-examination, he admitted that even assuming that her
left knee was fine, she would be virtually unemployable due to her back
condition. Dr. Drisko testified that she
was PTD due to her progressive back problems alone.
At a Hearing, the ALJ found the Fund liable for PTD
based on the combination of the claimant’s primary injury and pre-existing
disabilities. On Appeal, the Commission
reversed and found that the Fund was not liable because the claimant was PTD as
a result of her pre-existing low back condition, considered alone.
HOLDING: The claimant
appealed to the Court, which affirmed the Commission’s Award and Decision to
deny benefits against the Fund. It held
that questions of employability and when a claimant becomes permanently and
totally disabled are issues of fact within the province of the Commission, and
it deferred to the Commission’s factual findings in this case.
Fund Liable
for PTD Because Claimant Unemployable Due to Primary Injury Combined with
Pre-Existing Right Leg Injury, Anxiety/Depression, and Need to Lie Down
Throughout Day
Johnson vs. Direct TV Home Services
and Treasurer of Missouri As Custodian of Second Injury Fund, Injury No.
12-100647
The claimant, a 48-year-old satellite technician, did
not graduate high school or obtain a GED.
On December 19, 2012, he fell in a customer’s yard and sustained
injuries to his right foot, right buttock, and low back. He underwent injections, and Dr. Rahman
ultimately performed a microdiscectomy at L5-S1. He was released from treatment on December
17, 2013.
The claimant had pre-existing injuries. When he was two years old, he severed the
muscles in his right leg below his buttocks, which required surgery. However, a nerve was nicked and resulted in
paralysis of the right leg, which necessitated multiple additional surgeries
and additional medical treatment over the next 10-12 years. Due to this condition, he developed anxiety
and began taking Xanax when he was 35.
His right leg never regained full function and mobility and he could not
rotate his right ankle. His pre-existing
conditions affected his employment prior to 2012. He was fired from a construction job because
he was unable to climb on a roof without decking. He also had to stand on cardboard or mats
while working as a welder, worked slower, and took more breaks as a result of
his pre-existing injuries. He was not
able to continue working as a truck driver after he began taking anti-anxiety
medications. He also had difficulty
keeping his right foot on the gas pedal for extended periods of time due to his
right leg and foot injury. Even while
working for the employer, he had trouble climbing on roofs and balancing on
ladder rungs prior to his 2012 accident.
The claimant’s attorney had him evaluated by Dr. Paul,
who recommended permanent work restrictions, including no significant climbing,
balancing, stooping, bending, kneeling, crouching, or crawling and that the
claimant be able to lie down during the day.
He opined the claimant was PTD as a result of his work accident in
combination with his pre-existing conditions.
Mr. Eldred, a vocational rehabilitation specialist, also opined that he
was unemployable as a result of his work accident and pre-existing conditions. He believed that the claimant’s need to lie
down during the day would negate employment.
At a Hearing, the ALJ found the clamant to be PTD as a
result of his work accident in combination with his pre-existing disabilities
and ordered the Fund to pay PTD. The ALJ
noted prior accommodations and limitations the claimant had as a result of his
pre-existing disabilities for his 2012 work accident and also found the
testimony of Dr. Paul and Mr. Eldred to be persuasive on the question of
PTD. On Appeal, the Commission affirmed
the ALJ’s decision and Award.
Commission
Decision Finding Fund Liable for PTD Benefits Supported by the Record Because
Claimant’s Expert Testified He Was PTD and Employer’s Expert Testified He Had a
Pre-Existing Disability
Barnes vs. Treasurer of Missouri as
Custodian of Second Injury Fund and Park Express LLC, Case No.
ED105508 (Mo. App. 2017)
FACTS: The claimant
worked for the employer, an airport parking and shuttle company, and on
November 11, 2009, while changing a tire on his shuttle bus, he sustained an
injury to his lower back. He underwent
injections and physical therapy and was released from care by Dr. Doll without
restrictions. The claimant subsequently
treated on his own with Dr. Wilkey, who performed a two-level lumbar fusion at
L4-5 and L5-S1. He recommended permanent
restrictions that included taking a break to recline for 15 minutes every two
hours, ongoing narcotic pain medication, and possibly missing work up to twice
a month. The claimant had not returned
to work since his 2011 surgery and was terminated by the employer when he was
unable to return to work full duty.
The claimant suffered a prior low back injury in May
2000 and underwent surgery at L5-S1 in September 2000, including a right-sided
laminectomy and discectomy. He returned
to work without permanent restrictions and settled that claim for 25% of the
body referable to the lower back.
The claimant’s experts, Dr. Wilkey and Mr. Kaver,
testified that the claimant was unemployable and PTD as a result of his 2009
work injury alone. The employer’s
expert, Dr. Lange, assessed 15% PPD of the body due to the 2009 injury and 25% PPD
of the body from his prior injury in 2000.
Dr. Lange concluded that the claimant’s 2009 work accident was not the
prevailing factor in causing his disability at L5-S1. Rather, his prior injury in 2000 was the
prevailing factor in causing his disability.
At a Hearing, the ALJ found the claimant PTD as a
result of his last work injury alone. On
Appeal, the Commission modified the Award and found the Fund liable for PTD
benefits as the claimant was PTD as a result of his last work injury in
combination with his pre-existing low back injury.
HOLDING: The Fund
appealed and argued that the Commission substituted its own determination of
medical causation, which was unsupported by medical expert testimony because
there was no single medical expert that testified that the claimant was PTD as
a result of a combination of primary injury and pre-existing disabilities. The Court found that the Commission’s
decision was supported by the record because the claimant’s experts testified
that the claimant was permanently and totally disabled, and the employer’s
expert testified that there was pre-existing permanent disability to the
claimant’s low back. It held that there is no requirement that
a single expert’s testimony wholly support the Commission’s determinations of
both causation and the nature and extent of disability. The Court deferred to the Commission’s
factual findings and affirmed the
Commission’s decision and Award.
Claimant Not Entitled to Enhanced Benefits Under
287.200.4(3), Because Employer Went Out of Business More Than Fifteen Years
Prior to When the Statute Became Effective on January 1, 2014 and Could Not
Have Elected to Accept Mesothelioma Liability
Hegger (Deceased) vs. Valley Farm Dairy Co., Injury No. 14-103079
The claimant
worked for the employer from 1968 until 1984, during which time he was exposed
to asbestos. The employer went out of
business in 1998. The claimant worked
for subsequent employers, but he credibly testified he was not exposed to
asbestos during that employment. The
claimant was diagnosed with mesothelioma in 2014 and died as a result on June
7, 2015.
At a Hearing,
the ALJ addressed the sole issue of enhanced benefits under Section
287.200.4(3). The ALJ found that the
claimant was last exposed to asbestos while working for the employer, and his
exposure was the prevailing factor for his diagnosis of mesothelioma which
resulted in his death. However, neither
of the insurers who insured the employer during the claimant’s dates of
employment were liable for paying enhanced benefits because the enhanced
benefits provision did not go into effect until January 1, 2014. The employer could not possibly have elected
to be held liable for the same, because it went out of business in 1998. Also, insuring its liability for occupational
diseases in 1984 did not qualify as electing to be liable for enhanced
benefits, which are separate and in addition to benefits otherwise payable for
an occupational disease. Therefore, the
claimant was not entitled to enhanced benefits.
On Appeal, the Commission affirmed and adopted the ALJ’s decision and
Award.
Simon Law Group, P.C.
720 Olive Street, Suite 1720, St. Louis, MO
63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW
UPDATE
October 2017 – December 2017
Injury Not Compensable Because Claimant
Made Multiple Inconsistent Statements of How and When Injury Occurred and
Failed to Establish Injury Was Caused by a Compensable Accident
Saine vs. Pepsi Beverages Company, Injury No. 15-069886
The claimant
alleged he sustained an injury to his neck and right arm while driving a tractor
trailer in August 2015. His first Claim
for Compensation alleged an injury to his right shoulder and arm that occurred
on August 31, 2015. He subsequently
amended the claim three times to allege injury to his neck, changed the date of
injury to August 25, 2015, and then changed the date of injury back to August
31, 2015. The claimant testified at a
Hearing that the injury actually occurred on August 15, 2015.
The claimant
also made inconsistent statements regarding how the injury occurred. He told a nurse at work that his right
shoulder pain was caused by tight steering in his work truck. He went on his own on September 10, 2015 to
the hospital and reported right shoulder pain following a lifting injury. On May 3, 2016, he reported to Dr. Rutz that
he sustained an injury by repeatedly backing into loading docks and twisting
his body when unloading products off of his truck and then his symptoms became
irritated when a car cut in front of him and he tried to avoid the collision.
At a Hearing,
the ALJ found that the claimant failed to establish that his complaints were a
result of an injury that he sustained as a result of an accident arising out of
and in the course of his employment. The
Judge noted that an accident is an unexpected traumatic event or unusual strain
identifiable by time and place of occurrence and producing at the time
objective symptoms of an injury caused by a specific
event during a single work shift.
The ALJ noted that the claimant made multiple inconsistent statements regarding
how and when the injury occurred and there was no relevant objective evidence
of an issue with his work truck. Also, the
employer’s experts testified that none of the three possible versions given by
the claimant of how his injury occurred would have caused his injury. Therefore, the ALJ found there was no single
identifiable traumatic event or unusual strain that occurred during single work
shift, and the claimant failed to show that his injury was caused by a
compensable accident. On appeal, the
Commission affirmed the ALJ’s decision and Award denying benefits.
Appeal Transferred to Missouri Supreme Court to
Determine Whether Applying Mesothelioma Statute to Claim with Last Exposure in
1990 Violates Missouri Constitution
E.J. Cody Company, Inc. vs. Casey, Case No. WD80470 consolidated with WD80481 and
WD80525 (Mo. App. 2017)
FACTS: The claimant
worked as a flooring installer applying vinyl asbestos tile from 1984 until
April 1990, when he retired. He was
diagnosed with mesothelioma on October 14, 2014 and died from the same on
October 11, 2015. His diagnosis and the
fact that mesothelioma was the prevailing cause of the claimant’s death was not
at issue. The insurer provided the
employer with workers’ compensation insurance with a mesothelioma endorsement,
which was in effect as of the date the claimant was diagnosed with mesothelioma.
At a Hearing,
the insurer argued that it was not responsible for paying benefits because the
claimant was exposed to asbestos prior to the beginning of its insurance
coverage and the responsible party was the insurer in 1990. However, the ALJ found that under the statute
dealing with mesothelioma benefits, the date of diagnosis determines what
insurer is liable for benefits under the statute, and reasoned that the
provision in the insurance policy stating that the exposure must occur during
the policy period is essentially voided by the endorsement, which provided
coverage for mesothelioma benefits. On
Appeal, the Commission modified the Award but ultimately agreed that the
insurer was responsible for paying benefits. The Commission agreed with the ALJ
that the insurer’s mesothelioma endorsement applied to this claim because the
date of diagnosis was after the amendments, which went into effect on January
1, 2014, and the claimant was diagnosed with mesothelioma during the insurer’s
policy.
On Appeal,
both the insurer and employer argued that application of the new mesothelioma
statute to the present case violated the Missouri Constitution’s prohibition
against retrospective laws because the employee’s last exposure to the hazard
predated the statute’s effective date of January 1, 2014.
HOLDING:
The Missouri Court of Appeals held that the Missouri Supreme Court had
exclusive jurisdiction over this appeal in light of the constitutional issues
raised, and it transferred the appeal to the Missouri Supreme Court.
> Boatright is
the Employer Because He Had Authority to Hire/Fire, Assign Driving Routes, and
Determine Payment, and FFE is a For Hire Motor Carrier
Parr vs. Bobby Boatright and Frozen Food Express a/k/a FFE
Transportation Services, Inc., Injury No. 08-124297
Boatright was a sole proprietor who owned trucks that
he leased to FFE to transport frozen or refrigerated food between Chicago and
Dallas. The contract provided that
Boatright would supply drivers at his own expense who met requirements imposed
by FFE’s liability insurance carrier and Federal Law. Boatright did the hiring and firing and paid
the drivers. FFE did not control the
routes the drivers took to deliver or pick up loads, did not determine which
driver was assigned to the route, and did not control the amount or frequency
of payment to any driver. On February
16, 2008, the claimant was driving his assigned route as an OTR truck driver
when he was involved in a motor vehicle accident in Missouri.
At the
Hearing, the issue was the claimant’s employer. The ALJ found that Boatright was the employer,
not FFE, and noted that Boatright had the right to hire and fire, determine the
amount and frequency of payment, assign routes, provide the trucks and maintain
the same. Additionally, because FFE was
a for-hire motor carrier operating within a commercial zone, it was not a
statutory employer of claimant under workers’ compensation law. With respect to permanency, the ALJ did not
find Boatright responsible for the same because the claimant did not hit his
head or lose consciousness in the accident and did not seek treatment for three
weeks after the accident, the damage to the vehicle was minimal, and there was
no evidence suggesting that the work accident was the prevailing factor in
causing any medical condition related to his current complaints. The ALJ denied payment of PTD, TTD, PPD, or
future medical. On Appeal, the
Commission affirmed the ALJ’s Decision and Award.
Editor’s Note: At the Hearing, the ALJ also found that
under strict construction, 287.210.3 and 287.210.7 only apply to physician
testimony. Therefore, certified
treatment records that are not offered as a substitute for an expert’s
testimony would still be admissible, even if not provided to all parties at
least seven days in advance of a Hearing.
Court Affirms Commission’s Decision and Award Finding
that Claimant’s Work Conditions Were Not the Prevailing Cause of His Heart
Attack and Death
White vs. ConAgra Packaged Foods LLC, Case No. SC96041 (Mo. Sup. Ct. 2017)
FACTS: The claimant
worked as a machinist before he died on June 30, 2012 while at work. His autopsy showed severe coronary artery
disease, and his death certificate listed his cause of death as acute
myocardial infarction and heart failure.
His surviving spouse filed for death benefits under workers’
compensation. Testimony established that
the claimant operated a lathe in a machine shop on the day of his death and the
weather was extremely hot. Dr. Schuman
testified on behalf of the surviving spouse and opined that the claimant’s work
was the prevailing factor in causing his death because the extreme heat
combined with the claimant’s physically demanding work duties and leg brace
placed added stress on his already strained heart. Dr. Farrar testified on behalf of the
employer that the claimant’s death was caused by his coronary artery disease
and other heart conditions and was not related to his work activities.
At a Hearing,
the ALJ found that the claimant’s surviving spouse failed to sustain her burden
of proof that the claimant sustained an accident or occupational disease, and
the claim was therefore not compensable.
On Appeal, the Commission affirmed the ALJ’s Award with a supplemental
opinion. The Commission found that the
claimant did suffer an accident because his death at work was an unexpected
traumatic event. However, the Commission
found there was no persuasive expert testimony on the issue of medical
causation and ruled that the claimant’s work was not the prevailing factor in causing his heart attack or death.
HOLDING:
The claimant’s surviving spouse appealed. The Court first held that the claimant
suffered an accident, which was the unusual strain placed on him due to the
extraordinary heat, and this accident resulted in an injury, which was his
death. The Court held that the next step
was to determine whether the unusual strain was the prevailing factor in causing the claimant’s heart attack and
death. The Court held that the
Commission properly applied the prevailing factor standard, deferred to the
Commission’s findings of fact with respect to the persuasiveness of expert
medical testimony, and affirmed the Commission’s decision and Award.
Employer Responsible for Unauthorized Treatment
Claimant Underwent During the Four Weeks Between the Date She Filed a Claim
Demanding Additional Treatment and the Date She Was Evaluated by Employer’s
Doctor
Boykins-Walls vs. Normandy School District, Injury No. 13-098181
The claimant,
a substitute teacher, sustained an injury to her bilateral knees on December 6,
2013, when she slipped and fell on ice while walking between buildings. She treated conservatively for contusions and
underwent physical therapy and was released from care on December 26,
2013. She proceeded to treat on her own
with Dr. Droege and then filed a Claim for Compensation demanding additional
treatment on January 15, 2014. The
employer directed her to Dr. Milne, and she was seen on February 10, 2014, just
four weeks later. She was placed at MMI
on April 1, 2014.
At a Hearing,
the ALJ found that although the claimant sustained an accident, she did not
sustain any permanent disability from the same.
The ALJ denied all benefits.
On appeal, the Commission modified the ALJ’s Award and
decision with respect to unpaid past medical expenses. The Commission found that the claimant was
not entitled to reimbursement for medical bills for any treatment she received
after the employer directed her to Dr. Milne for additional treatment. However, the Commission did award past
medical expenses for the treatment she underwent between the time she filed her
Claim on January 15, 2014 and when she was seen by Dr. Milne on February 10,
2014. The Commission reasoned that the
employer was notified of the claimant’s need for additional medical treatment
when she filed a Claim demanding the same.
It also reasoned that the treatment provided by Dr. Droege during that
period was reasonable and necessary and was consistent with the type of
treatment that both of the authorized treating physicians recommended and
ultimately provided. Therefore, the
claimant was entitled to compensation in the amount of $783.00, referable to
past medical expenses. Notably, the
Commission opined that brief delays in scheduling appointments, other than in
emergency situations, do not render an employer/insurer liable for unauthorized
care.
Editor’s
Note: Therefore, it appears the
Commission is suggesting that four weeks was too long to wait to schedule the
claimant for a follow up evaluation.
Employer Liable for PTD Because Claimant Was Sleep
Deprived Due to Pain and Had to Nap Several Times Per Day, Despite Fact that He
Slept At Least Eight Hours Per Night and Did Not Take Any Medications to
Attempt to Alleviate His Sleep Issues
Wann vs. The Lawrence Group, Injury No. 12-090608
The claimant,
a 59-year-old carpenter and high school graduate, developed bilateral upper
extremity pain, numbness, and tingling in November 2012. He underwent an arthroscopic surgery on the
right shoulder on July 22, 2013, which was performed by Dr. Ritchie, who placed
him at MMI, issued permanent lifting restrictions, and assessed 20% PPD of the
right shoulder. The claimant never
returned to work after surgery. Two
years later, the employer directed the claimant back to Dr. Ritchie, who also
diagnosed work-related chronic left shoulder impingement and probable labral
pathology, bilateral carpal tunnel syndrome, and left elbow mild ulnar nerve
neuropathy and opined the claimant would require carpal tunnel releases in the
future.
The claimant
was evaluated by Dr. Volarich, who noted that he awakened several times per
night due to shoulder pain, although he was not taking any pain medications to
alleviate the same, and the doctor recommended a vocational evaluation and
opined that if the claimant were PTD, it was due to the primary injury
alone. The claimant’s vocational expert,
Mr. England, opined that he was PTD as a result of his primary injury
alone. He noted that if claimant got an
adequate full night’s sleep, he would be a candidate for some jobs, but he
noted the claimant has sleep disturbance and takes no medication to help him
sleep. The employer’s vocational expert,
Ms. Abrams, opined the claimant was able to work in the open labor market, but
she admitted that if he did have to take several naps during the day, he may
not be able to find and maintain a job.
At a Hearing,
the claimant testified that he had sleep difficulties, although he slept over
eight hours per night. He testified that
he takes Ibuprofen a few times per month but no other pain medication. He had not worked since January 2013 and had
not looked for other employment besides one position at a family member’s
company. The ALJ awarded PPD at the
level of the bilateral shoulders and wrists but found that the claimant was not
PTD. The ALJ noted that although he was
not able to return to his former job as a carpenter, he had no ambulation
problems, no need for narcotic pain medication, and was able to perform
self-care. Although he had sleep
deficits, he was making no attempt to alleviate the same, and his sleep issues
were not noted in his treatment records, only in the expert reports. The ALJ also noted that the claimant was
articulate and had transferable skills and no memory problems.
On appeal,
the Commission opined it was plausible that someone with bilateral shoulder
injuries may have difficulty sleeping comfortably, and this was noted in Dr.
Volarich’s report. It found Dr.
Volarich’s opinion most persuasive and disagreed with the ALJ regarding the
claimant’s credibility in light of the opinions of Dr. Volarich and Mr.
England. The Commission held that the
claimant’s sleep difficulties rendered him PTD as a result of his primary
injury alone and found the employer responsible for PTD and future medical.
Editor’s Note: It
does not appear that the Commission addressed the ALJ’s rationale
that the claimant made no efforts to alleviate his sleep issues.
Employer
Responsible for PTD After Claimant Sustained Multiple Fractures to Bilateral
Lower
Extremities
After Falling 25 Feet, Which Required Him to Spontaneously Recline Throughout
The Day and
Caused Sleep and Concentration Difficulties
Sanchez-Rivera vs. Jorge Calderon Construction and
Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 10-059076
The claimant,
a 34-year-old construction worker, was working for employer on July 16, 2010,
at which time he fell 25 feet from a ladder.
Dr. Horton performed an ORIF of the bilateral tibial fractures on August
9, 2010 and two subsequent surgeries.
The claimant’s lumbar injuries were treated non-operatively. He was placed at MMI on August 18, 2011 but
was restricted to seated work only. The
claimant continues to undergo regular pain management. He did not return to work after his accident. He testified that he has to lie down
throughout the day due to his pain and is unable to support his weight on his
feet, sleep overnight, or concentrate due to his lack of sleep. He also now uses a cane.
At a Hearing,
the claimant testified that he completed the seventh grade in Mexico and never
returned to school, and he understands and speaks only a little English. He did not have a driver’s license or any
computer or typing skills.
The claimant
was evaluated by Dr. Koprivica, who opined he was PTD as a result of his last
injury alone. He recommended permanent restrictions of no working on uneven
surfaces, climbing activities, standing and walking for less than 20 minutes
only, sitting when necessary, and the ability to change positions frequently
when needed. Mr. Dreiling, a vocational
rehabilitation specialist, evaluated the claimant at the claimant’s attorney’s
request, and he opined the claimant was not a candidate for any type of formal
academic or vocational retraining because English was his second language and
he did not have a high school degree or GED and no transferable job
skills. He also opined that he would
find the claimant PTD as a result of his last injury alone due to his need to
spontaneously lie down throughout the day, even if his primary language was
English.
At a Hearing,
the ALJ found that the claimant was PTD because he testified credibly regarding
his need to lie down throughout the day, his use of narcotic pain medication,
and his lack of concentration and sleep. On appeal, the Commission affirmed the
ALJ’s decision and Award.
Fund Liable for PTD Because Prior Low Back Injury
Caused Primary Low Back Injury to be More Severe Than Otherwise Would Have Been
Branham
vs. Schrimpf Landscaping, Inc. and Treasurer of Missouri as Custodian of Second
Injury Fund, Injury Number 06-077118
The claimant, a man of unspecified age with a GED, was
working for the employer driving a tanker truck and operating a seed sprayer
when he sustained an injury to his low back on July 17, 2006. He underwent surgery to repair an annular
tear on May 10, 2007. He subsequently
underwent two additional low back surgeries, including a three-level fusion on
January 24, 2011 as well as a surgery to remove bone graft material from the
stomach wall on February 1, 2012. The
claimant has not worked since 2010.
The claimant previously sustained a low back injury in
2000 while working for a roofing company, after which he underwent surgery at
L5-S1 and resolved his claim for 16.1% PPD of the body referable to the low
back. He was unable to continue working
as a roofer following his injury due to lifting limits and ongoing back and leg
pain.
Dr. Volarich evaluated the claimant and opined that
his prior low back injury was a hindrance to his employment and he was more
disabled as a result of a combination of his two injuries because his lumbar
spine was weakened after the first injury, which caused his 2006 injury to be
more severe than it otherwise would have been.
Dr. Volarich opined the claimant was PTD as a result of a combination of
his 2000 and 2006 injuries. Vocational
experts Mr. Weimholt and Mr. Cordray agreed that the claimant was unemployable
as a result of a combination of both low back injuries. Mr. Hughes was the only rehabilitation
counselor to opine that the claimant was able to continue working, although he
noted that if the claimant were found PTD it would be as a result of both of
his low back injuries.
At a hearing, the ALJ found the employer responsible
for 45% PPD of the body referable to the low back as a result of the 2006 work
injury as well as future medical. The
ALJ also found the claimant was PTD as a result of a combination of both his
low back injuries. On Appeal, the
Commission affirmed the ALJ’s decision and Award with respect to permanency and
future medical, but they modified the Award with respect to the claimant’s TTD
and PTD rate.
Fund Liable for PTD Benefits After Claimant Forced to
Change Jobs Following Prior Low
Back Injury and Reported Ongoing Back Pain Prior to
Primary Injury
Sanderson
vs. Dolgen Corp., Inc. and Treasurer of Missouri as Custodian of Second Injury
Fund, Injury No. 09-108286
The claimant, a 65-year-old warehouse worker,
sustained an injury to his back on October 27, 2009 while working for the
employer. He treated on his own and
underwent physical therapy and an injection.
The claimant sustained a prior low back injury in
1998, which was settled for 11% PPD of the body referable to the lumbar
spine. Dr. Levy evaluated the claimant
and opined that he had 30% PPD to the body in 1998. It is not clear whether the claimant
underwent surgery for the 1998 injury, but he testified he was forced to leave
his job in security because he could no longer perform the physically demanding
job duties. He also testified that he
was unable to return to work for two years and continued to have intermittent
low back pain leading up to his primary injury.
The claimant was evaluated by Dr. Volarich, who
testified that he sustained 35% PPD to the body as a result of his primary
injury and was PTD as a result of a combination of his 1998 and 2009 back
injuries. Vocational experts Mr.
Weimholt and Mr. Cordray agreed with Dr. Volarich. Mr. England testified on behalf of the Fund
and opined that he was employable, although he agreed that the 1998 injury was
a hindrance to his employment.
At a hearing, the ALJ found the claimant PTD as a
result of a combination of his pre-existing low back injury and his primary
injury and ordered the Fund to pay PTD benefits. The ALJ also found the employer responsible
for 20% PPD of the body, past medical expenses, and future medical care. On Appeal, the Commission affirmed the ALJ’s
decision and Award.
Fund Not Liable for PTD Benefits Because
Claimant PTD As a Result of Her Pre-Existing, Non-Work-Related Low Back
Condition Considered Alone
Glasco vs. Treasurer of the State of
Missouri Custodian of the Second Injury Fund, Case No. WD80186 (Mo. App. 2017)
FACTS: On April 27,
2011, the claimant fell at work and injured her left knee and was diagnosed
with a strain. She treated with the
employer’s doctors and ultimately resolved her claim against the employer for
15% PPD of the knee.
The claimant had a significant pre-existing and
non-work-related condition in her low back, for which she treated with Dr.
Drisko. She underwent multiple back
surgeries prior to 2008 and then a fusion.
She was diagnosed with failed back syndrome and was referred to a pain
specialist and psychiatrist. She was
subsequently diagnosed with “Transition Syndrome” after she developed stenosis
over the site of her prior surgery. She
underwent additional injections. Dr.
Drisko took her off work in May 2010 for her low back condition, and she did
not return to work until April 12, 2011, at which time she returned to work
with restrictions. She then only worked
two weeks for the employer prior to sustaining her primary injury.
The claimant filed against the Fund for PTD
benefits. Dr. Zimmerman, the claimant’s
expert, opined she was PTD as a result of a combination of her primary injury
and pre-existing conditions. However, he
did not review all of the claimant’s prior medical records and did not have a
complete history of her prior treatment and disability. Mr. Dreiling also testified on behalf of the
claimant, and on cross-examination, he admitted that even assuming that her
left knee was fine, she would be virtually unemployable due to her back
condition. Dr. Drisko testified that she
was PTD due to her progressive back problems alone.
At a Hearing, the ALJ found the Fund liable for PTD
based on the combination of the claimant’s primary injury and pre-existing
disabilities. On Appeal, the Commission
reversed and found that the Fund was not liable because the claimant was PTD as
a result of her pre-existing low back condition, considered alone.
HOLDING: The claimant
appealed to the Court, which affirmed the Commission’s Award and Decision to
deny benefits against the Fund. It held
that questions of employability and when a claimant becomes permanently and
totally disabled are issues of fact within the province of the Commission, and
it deferred to the Commission’s factual findings in this case.
Fund Liable
for PTD Because Claimant Unemployable Due to Primary Injury Combined with
Pre-Existing Right Leg Injury, Anxiety/Depression, and Need to Lie Down
Throughout Day
Johnson vs. Direct TV Home Services
and Treasurer of Missouri As Custodian of Second Injury Fund, Injury No.
12-100647
The claimant, a 48-year-old satellite technician, did
not graduate high school or obtain a GED.
On December 19, 2012, he fell in a customer’s yard and sustained
injuries to his right foot, right buttock, and low back. He underwent injections, and Dr. Rahman
ultimately performed a microdiscectomy at L5-S1. He was released from treatment on December
17, 2013.
The claimant had pre-existing injuries. When he was two years old, he severed the
muscles in his right leg below his buttocks, which required surgery. However, a nerve was nicked and resulted in
paralysis of the right leg, which necessitated multiple additional surgeries
and additional medical treatment over the next 10-12 years. Due to this condition, he developed anxiety
and began taking Xanax when he was 35.
His right leg never regained full function and mobility and he could not
rotate his right ankle. His pre-existing
conditions affected his employment prior to 2012. He was fired from a construction job because
he was unable to climb on a roof without decking. He also had to stand on cardboard or mats
while working as a welder, worked slower, and took more breaks as a result of
his pre-existing injuries. He was not
able to continue working as a truck driver after he began taking anti-anxiety
medications. He also had difficulty
keeping his right foot on the gas pedal for extended periods of time due to his
right leg and foot injury. Even while
working for the employer, he had trouble climbing on roofs and balancing on
ladder rungs prior to his 2012 accident.
The claimant’s attorney had him evaluated by Dr. Paul,
who recommended permanent work restrictions, including no significant climbing,
balancing, stooping, bending, kneeling, crouching, or crawling and that the
claimant be able to lie down during the day.
He opined the claimant was PTD as a result of his work accident in
combination with his pre-existing conditions.
Mr. Eldred, a vocational rehabilitation specialist, also opined that he
was unemployable as a result of his work accident and pre-existing conditions. He believed that the claimant’s need to lie
down during the day would negate employment.
At a Hearing, the ALJ found the clamant to be PTD as a
result of his work accident in combination with his pre-existing disabilities
and ordered the Fund to pay PTD. The ALJ
noted prior accommodations and limitations the claimant had as a result of his
pre-existing disabilities for his 2012 work accident and also found the
testimony of Dr. Paul and Mr. Eldred to be persuasive on the question of
PTD. On Appeal, the Commission affirmed
the ALJ’s decision and Award.
Commission
Decision Finding Fund Liable for PTD Benefits Supported by the Record Because
Claimant’s Expert Testified He Was PTD and Employer’s Expert Testified He Had a
Pre-Existing Disability
Barnes vs. Treasurer of Missouri as
Custodian of Second Injury Fund and Park Express LLC, Case No.
ED105508 (Mo. App. 2017)
FACTS: The claimant
worked for the employer, an airport parking and shuttle company, and on
November 11, 2009, while changing a tire on his shuttle bus, he sustained an
injury to his lower back. He underwent
injections and physical therapy and was released from care by Dr. Doll without
restrictions. The claimant subsequently
treated on his own with Dr. Wilkey, who performed a two-level lumbar fusion at
L4-5 and L5-S1. He recommended permanent
restrictions that included taking a break to recline for 15 minutes every two
hours, ongoing narcotic pain medication, and possibly missing work up to twice
a month. The claimant had not returned
to work since his 2011 surgery and was terminated by the employer when he was
unable to return to work full duty.
The claimant suffered a prior low back injury in May
2000 and underwent surgery at L5-S1 in September 2000, including a right-sided
laminectomy and discectomy. He returned
to work without permanent restrictions and settled that claim for 25% of the
body referable to the lower back.
The claimant’s experts, Dr. Wilkey and Mr. Kaver,
testified that the claimant was unemployable and PTD as a result of his 2009
work injury alone. The employer’s
expert, Dr. Lange, assessed 15% PPD of the body due to the 2009 injury and 25% PPD
of the body from his prior injury in 2000.
Dr. Lange concluded that the claimant’s 2009 work accident was not the
prevailing factor in causing his disability at L5-S1. Rather, his prior injury in 2000 was the
prevailing factor in causing his disability.
At a Hearing, the ALJ found the claimant PTD as a
result of his last work injury alone. On
Appeal, the Commission modified the Award and found the Fund liable for PTD
benefits as the claimant was PTD as a result of his last work injury in
combination with his pre-existing low back injury.
HOLDING: The Fund
appealed and argued that the Commission substituted its own determination of
medical causation, which was unsupported by medical expert testimony because
there was no single medical expert that testified that the claimant was PTD as
a result of a combination of primary injury and pre-existing disabilities. The Court found that the Commission’s
decision was supported by the record because the claimant’s experts testified
that the claimant was permanently and totally disabled, and the employer’s
expert testified that there was pre-existing permanent disability to the
claimant’s low back. It held that there is no requirement that
a single expert’s testimony wholly support the Commission’s determinations of
both causation and the nature and extent of disability. The Court deferred to the Commission’s
factual findings and affirmed the
Commission’s decision and Award.
Claimant Not Entitled to Enhanced Benefits Under
287.200.4(3), Because Employer Went Out of Business More Than Fifteen Years
Prior to When the Statute Became Effective on January 1, 2014 and Could Not
Have Elected to Accept Mesothelioma Liability
Hegger (Deceased) vs. Valley Farm Dairy Co., Injury No. 14-103079
The claimant
worked for the employer from 1968 until 1984, during which time he was exposed
to asbestos. The employer went out of
business in 1998. The claimant worked
for subsequent employers, but he credibly testified he was not exposed to
asbestos during that employment. The
claimant was diagnosed with mesothelioma in 2014 and died as a result on June
7, 2015.
At a Hearing,
the ALJ addressed the sole issue of enhanced benefits under Section
287.200.4(3). The ALJ found that the
claimant was last exposed to asbestos while working for the employer, and his
exposure was the prevailing factor for his diagnosis of mesothelioma which
resulted in his death. However, neither
of the insurers who insured the employer during the claimant’s dates of
employment were liable for paying enhanced benefits because the enhanced
benefits provision did not go into effect until January 1, 2014. The employer could not possibly have elected
to be held liable for the same, because it went out of business in 1998. Also, insuring its liability for occupational
diseases in 1984 did not qualify as electing to be liable for enhanced
benefits, which are separate and in addition to benefits otherwise payable for
an occupational disease. Therefore, the
claimant was not entitled to enhanced benefits.
On Appeal, the Commission affirmed and adopted the ALJ’s decision and
Award.
Simon Law Group, P.C.
720 Olive Street, Suite 1720, St. Louis, MO
63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW
UPDATE
October 2017 – December 2017
Injury Not Compensable Because Claimant
Made Multiple Inconsistent Statements of How and When Injury Occurred and
Failed to Establish Injury Was Caused by a Compensable Accident
Saine vs. Pepsi Beverages Company, Injury No. 15-069886
The claimant
alleged he sustained an injury to his neck and right arm while driving a tractor
trailer in August 2015. His first Claim
for Compensation alleged an injury to his right shoulder and arm that occurred
on August 31, 2015. He subsequently
amended the claim three times to allege injury to his neck, changed the date of
injury to August 25, 2015, and then changed the date of injury back to August
31, 2015. The claimant testified at a
Hearing that the injury actually occurred on August 15, 2015.
The claimant
also made inconsistent statements regarding how the injury occurred. He told a nurse at work that his right
shoulder pain was caused by tight steering in his work truck. He went on his own on September 10, 2015 to
the hospital and reported right shoulder pain following a lifting injury. On May 3, 2016, he reported to Dr. Rutz that
he sustained an injury by repeatedly backing into loading docks and twisting
his body when unloading products off of his truck and then his symptoms became
irritated when a car cut in front of him and he tried to avoid the collision.
At a Hearing,
the ALJ found that the claimant failed to establish that his complaints were a
result of an injury that he sustained as a result of an accident arising out of
and in the course of his employment. The
Judge noted that an accident is an unexpected traumatic event or unusual strain
identifiable by time and place of occurrence and producing at the time
objective symptoms of an injury caused by a specific
event during a single work shift.
The ALJ noted that the claimant made multiple inconsistent statements regarding
how and when the injury occurred and there was no relevant objective evidence
of an issue with his work truck. Also, the
employer’s experts testified that none of the three possible versions given by
the claimant of how his injury occurred would have caused his injury. Therefore, the ALJ found there was no single
identifiable traumatic event or unusual strain that occurred during single work
shift, and the claimant failed to show that his injury was caused by a
compensable accident. On appeal, the
Commission affirmed the ALJ’s decision and Award denying benefits.
Appeal Transferred to Missouri Supreme Court to
Determine Whether Applying Mesothelioma Statute to Claim with Last Exposure in
1990 Violates Missouri Constitution
E.J. Cody Company, Inc. vs. Casey, Case No. WD80470 consolidated with WD80481 and
WD80525 (Mo. App. 2017)
FACTS: The claimant
worked as a flooring installer applying vinyl asbestos tile from 1984 until
April 1990, when he retired. He was
diagnosed with mesothelioma on October 14, 2014 and died from the same on
October 11, 2015. His diagnosis and the
fact that mesothelioma was the prevailing cause of the claimant’s death was not
at issue. The insurer provided the
employer with workers’ compensation insurance with a mesothelioma endorsement,
which was in effect as of the date the claimant was diagnosed with mesothelioma.
At a Hearing,
the insurer argued that it was not responsible for paying benefits because the
claimant was exposed to asbestos prior to the beginning of its insurance
coverage and the responsible party was the insurer in 1990. However, the ALJ found that under the statute
dealing with mesothelioma benefits, the date of diagnosis determines what
insurer is liable for benefits under the statute, and reasoned that the
provision in the insurance policy stating that the exposure must occur during
the policy period is essentially voided by the endorsement, which provided
coverage for mesothelioma benefits. On
Appeal, the Commission modified the Award but ultimately agreed that the
insurer was responsible for paying benefits. The Commission agreed with the ALJ
that the insurer’s mesothelioma endorsement applied to this claim because the
date of diagnosis was after the amendments, which went into effect on January
1, 2014, and the claimant was diagnosed with mesothelioma during the insurer’s
policy.
On Appeal,
both the insurer and employer argued that application of the new mesothelioma
statute to the present case violated the Missouri Constitution’s prohibition
against retrospective laws because the employee’s last exposure to the hazard
predated the statute’s effective date of January 1, 2014.
HOLDING:
The Missouri Court of Appeals held that the Missouri Supreme Court had
exclusive jurisdiction over this appeal in light of the constitutional issues
raised, and it transferred the appeal to the Missouri Supreme Court.
Boatright is
the Employer Because He Had Authority to Hire/Fire, Assign Driving Routes, and
Determine Payment, and FFE is a For Hire Motor Carrier
Parr vs. Bobby Boatright and Frozen Food Express a/k/a FFE
Transportation Services, Inc., Injury No. 08-124297
Boatright was a sole proprietor who owned trucks that
he leased to FFE to transport frozen or refrigerated food between Chicago and
Dallas. The contract provided that
Boatright would supply drivers at his own expense who met requirements imposed
by FFE’s liability insurance carrier and Federal Law. Boatright did the hiring and firing and paid
the drivers. FFE did not control the
routes the drivers took to deliver or pick up loads, did not determine which
driver was assigned to the route, and did not control the amount or frequency
of payment to any driver. On February
16, 2008, the claimant was driving his assigned route as an OTR truck driver
when he was involved in a motor vehicle accident in Missouri.
At the
Hearing, the issue was the claimant’s employer. The ALJ found that Boatright was the employer,
not FFE, and noted that Boatright had the right to hire and fire, determine the
amount and frequency of payment, assign routes, provide the trucks and maintain
the same. Additionally, because FFE was
a for-hire motor carrier operating within a commercial zone, it was not a
statutory employer of claimant under workers’ compensation law. With respect to permanency, the ALJ did not
find Boatright responsible for the same because the claimant did not hit his
head or lose consciousness in the accident and did not seek treatment for three
weeks after the accident, the damage to the vehicle was minimal, and there was
no evidence suggesting that the work accident was the prevailing factor in
causing any medical condition related to his current complaints. The ALJ denied payment of PTD, TTD, PPD, or
future medical. On Appeal, the
Commission affirmed the ALJ’s Decision and Award.
Editor’s Note: At the Hearing, the ALJ also found that
under strict construction, 287.210.3 and 287.210.7 only apply to physician
testimony. Therefore, certified
treatment records that are not offered as a substitute for an expert’s
testimony would still be admissible, even if not provided to all parties at
least seven days in advance of a Hearing.
Court Affirms Commission’s Decision and Award Finding
that Claimant’s Work Conditions Were Not the Prevailing Cause of His Heart
Attack and Death
White vs. ConAgra Packaged Foods LLC, Case No. SC96041 (Mo. Sup. Ct. 2017)
FACTS: The claimant
worked as a machinist before he died on June 30, 2012 while at work. His autopsy showed severe coronary artery
disease, and his death certificate listed his cause of death as acute
myocardial infarction and heart failure.
His surviving spouse filed for death benefits under workers’
compensation. Testimony established that
the claimant operated a lathe in a machine shop on the day of his death and the
weather was extremely hot. Dr. Schuman
testified on behalf of the surviving spouse and opined that the claimant’s work
was the prevailing factor in causing his death because the extreme heat
combined with the claimant’s physically demanding work duties and leg brace
placed added stress on his already strained heart. Dr. Farrar testified on behalf of the
employer that the claimant’s death was caused by his coronary artery disease
and other heart conditions and was not related to his work activities.
At a Hearing,
the ALJ found that the claimant’s surviving spouse failed to sustain her burden
of proof that the claimant sustained an accident or occupational disease, and
the claim was therefore not compensable.
On Appeal, the Commission affirmed the ALJ’s Award with a supplemental
opinion. The Commission found that the
claimant did suffer an accident because his death at work was an unexpected
traumatic event. However, the Commission
found there was no persuasive expert testimony on the issue of medical
causation and ruled that the claimant’s work was not the prevailing factor in causing his heart attack or death.
HOLDING:
The claimant’s surviving spouse appealed. The Court first held that the claimant
suffered an accident, which was the unusual strain placed on him due to the
extraordinary heat, and this accident resulted in an injury, which was his
death. The Court held that the next step
was to determine whether the unusual strain was the prevailing factor in causing the claimant’s heart attack and
death. The Court held that the
Commission properly applied the prevailing factor standard, deferred to the
Commission’s findings of fact with respect to the persuasiveness of expert
medical testimony, and affirmed the Commission’s decision and Award.
Employer Responsible for Unauthorized Treatment
Claimant Underwent During the Four Weeks Between the Date She Filed a Claim
Demanding Additional Treatment and the Date She Was Evaluated by Employer’s
Doctor
Boykins-Walls vs. Normandy School District, Injury No. 13-098181
The claimant,
a substitute teacher, sustained an injury to her bilateral knees on December 6,
2013, when she slipped and fell on ice while walking between buildings. She treated conservatively for contusions and
underwent physical therapy and was released from care on December 26,
2013. She proceeded to treat on her own
with Dr. Droege and then filed a Claim for Compensation demanding additional
treatment on January 15, 2014. The
employer directed her to Dr. Milne, and she was seen on February 10, 2014, just
four weeks later. She was placed at MMI
on April 1, 2014.
At a Hearing,
the ALJ found that although the claimant sustained an accident, she did not
sustain any permanent disability from the same.
The ALJ denied all benefits.
On appeal, the Commission modified the ALJ’s Award and
decision with respect to unpaid past medical expenses. The Commission found that the claimant was
not entitled to reimbursement for medical bills for any treatment she received
after the employer directed her to Dr. Milne for additional treatment. However, the Commission did award past
medical expenses for the treatment she underwent between the time she filed her
Claim on January 15, 2014 and when she was seen by Dr. Milne on February 10,
2014. The Commission reasoned that the
employer was notified of the claimant’s need for additional medical treatment
when she filed a Claim demanding the same.
It also reasoned that the treatment provided by Dr. Droege during that
period was reasonable and necessary and was consistent with the type of
treatment that both of the authorized treating physicians recommended and
ultimately provided. Therefore, the
claimant was entitled to compensation in the amount of $783.00, referable to
past medical expenses. Notably, the
Commission opined that brief delays in scheduling appointments, other than in
emergency situations, do not render an employer/insurer liable for unauthorized
care.
Editor’s
Note: Therefore, it appears the
Commission is suggesting that four weeks was too long to wait to schedule the
claimant for a follow up evaluation.
Employer Liable for PTD Because Claimant Was Sleep
Deprived Due to Pain and Had to Nap Several Times Per Day, Despite Fact that He
Slept At Least Eight Hours Per Night and Did Not Take Any Medications to
Attempt to Alleviate His Sleep Issues
Wann vs. The Lawrence Group, Injury No. 12-090608
The claimant,
a 59-year-old carpenter and high school graduate, developed bilateral upper
extremity pain, numbness, and tingling in November 2012. He underwent an arthroscopic surgery on the
right shoulder on July 22, 2013, which was performed by Dr. Ritchie, who placed
him at MMI, issued permanent lifting restrictions, and assessed 20% PPD of the
right shoulder. The claimant never
returned to work after surgery. Two
years later, the employer directed the claimant back to Dr. Ritchie, who also
diagnosed work-related chronic left shoulder impingement and probable labral
pathology, bilateral carpal tunnel syndrome, and left elbow mild ulnar nerve
neuropathy and opined the claimant would require carpal tunnel releases in the
future.
The claimant
was evaluated by Dr. Volarich, who noted that he awakened several times per
night due to shoulder pain, although he was not taking any pain medications to
alleviate the same, and the doctor recommended a vocational evaluation and
opined that if the claimant were PTD, it was due to the primary injury
alone. The claimant’s vocational expert,
Mr. England, opined that he was PTD as a result of his primary injury
alone. He noted that if claimant got an
adequate full night’s sleep, he would be a candidate for some jobs, but he
noted the claimant has sleep disturbance and takes no medication to help him
sleep. The employer’s vocational expert,
Ms. Abrams, opined the claimant was able to work in the open labor market, but
she admitted that if he did have to take several naps during the day, he may
not be able to find and maintain a job.
At a Hearing,
the claimant testified that he had sleep difficulties, although he slept over
eight hours per night. He testified that
he takes Ibuprofen a few times per month but no other pain medication. He had not worked since January 2013 and had
not looked for other employment besides one position at a family member’s
company. The ALJ awarded PPD at the
level of the bilateral shoulders and wrists but found that the claimant was not
PTD. The ALJ noted that although he was
not able to return to his former job as a carpenter, he had no ambulation
problems, no need for narcotic pain medication, and was able to perform
self-care. Although he had sleep
deficits, he was making no attempt to alleviate the same, and his sleep issues
were not noted in his treatment records, only in the expert reports. The ALJ also noted that the claimant was
articulate and had transferable skills and no memory problems.
On appeal,
the Commission opined it was plausible that someone with bilateral shoulder
injuries may have difficulty sleeping comfortably, and this was noted in Dr.
Volarich’s report. It found Dr.
Volarich’s opinion most persuasive and disagreed with the ALJ regarding the
claimant’s credibility in light of the opinions of Dr. Volarich and Mr.
England. The Commission held that the
claimant’s sleep difficulties rendered him PTD as a result of his primary
injury alone and found the employer responsible for PTD and future medical.
Editor’s Note: It
does not appear that the Commission addressed the ALJ’s rationale
that the claimant made no efforts to alleviate his sleep issues.
Employer
Responsible for PTD After Claimant Sustained Multiple Fractures to Bilateral
Lower
Extremities
After Falling 25 Feet, Which Required Him to Spontaneously Recline Throughout
The Day and
Caused Sleep and Concentration Difficulties
Sanchez-Rivera vs. Jorge Calderon Construction and
Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 10-059076
The claimant,
a 34-year-old construction worker, was working for employer on July 16, 2010,
at which time he fell 25 feet from a ladder.
Dr. Horton performed an ORIF of the bilateral tibial fractures on August
9, 2010 and two subsequent surgeries.
The claimant’s lumbar injuries were treated non-operatively. He was placed at MMI on August 18, 2011 but
was restricted to seated work only. The
claimant continues to undergo regular pain management. He did not return to work after his accident. He testified that he has to lie down
throughout the day due to his pain and is unable to support his weight on his
feet, sleep overnight, or concentrate due to his lack of sleep. He also now uses a cane.
At a Hearing,
the claimant testified that he completed the seventh grade in Mexico and never
returned to school, and he understands and speaks only a little English. He did not have a driver’s license or any
computer or typing skills.
The claimant
was evaluated by Dr. Koprivica, who opined he was PTD as a result of his last
injury alone. He recommended permanent restrictions of no working on uneven
surfaces, climbing activities, standing and walking for less than 20 minutes
only, sitting when necessary, and the ability to change positions frequently
when needed. Mr. Dreiling, a vocational
rehabilitation specialist, evaluated the claimant at the claimant’s attorney’s
request, and he opined the claimant was not a candidate for any type of formal
academic or vocational retraining because English was his second language and
he did not have a high school degree or GED and no transferable job
skills. He also opined that he would
find the claimant PTD as a result of his last injury alone due to his need to
spontaneously lie down throughout the day, even if his primary language was
English.
At a Hearing,
the ALJ found that the claimant was PTD because he testified credibly regarding
his need to lie down throughout the day, his use of narcotic pain medication,
and his lack of concentration and sleep. On appeal, the Commission affirmed the
ALJ’s decision and Award.
Fund Liable for PTD Because Prior Low Back Injury
Caused Primary Low Back Injury to be More Severe Than Otherwise Would Have Been
Branham
vs. Schrimpf Landscaping, Inc. and Treasurer of Missouri as Custodian of Second
Injury Fund, Injury Number 06-077118
The claimant, a man of unspecified age with a GED, was
working for the employer driving a tanker truck and operating a seed sprayer
when he sustained an injury to his low back on July 17, 2006. He underwent surgery to repair an annular
tear on May 10, 2007. He subsequently
underwent two additional low back surgeries, including a three-level fusion on
January 24, 2011 as well as a surgery to remove bone graft material from the
stomach wall on February 1, 2012. The
claimant has not worked since 2010.
The claimant previously sustained a low back injury in
2000 while working for a roofing company, after which he underwent surgery at
L5-S1 and resolved his claim for 16.1% PPD of the body referable to the low
back. He was unable to continue working
as a roofer following his injury due to lifting limits and ongoing back and leg
pain.
Dr. Volarich evaluated the claimant and opined that
his prior low back injury was a hindrance to his employment and he was more
disabled as a result of a combination of his two injuries because his lumbar
spine was weakened after the first injury, which caused his 2006 injury to be
more severe than it otherwise would have been.
Dr. Volarich opined the claimant was PTD as a result of a combination of
his 2000 and 2006 injuries. Vocational
experts Mr. Weimholt and Mr. Cordray agreed that the claimant was unemployable
as a result of a combination of both low back injuries. Mr. Hughes was the only rehabilitation
counselor to opine that the claimant was able to continue working, although he
noted that if the claimant were found PTD it would be as a result of both of
his low back injuries.
At a hearing, the ALJ found the employer responsible
for 45% PPD of the body referable to the low back as a result of the 2006 work
injury as well as future medical. The
ALJ also found the claimant was PTD as a result of a combination of both his
low back injuries. On Appeal, the
Commission affirmed the ALJ’s decision and Award with respect to permanency and
future medical, but they modified the Award with respect to the claimant’s TTD
and PTD rate.
Fund Liable for PTD Benefits After Claimant Forced to
Change Jobs Following Prior Low
Back Injury and Reported Ongoing Back Pain Prior to
Primary Injury
Sanderson
vs. Dolgen Corp., Inc. and Treasurer of Missouri as Custodian of Second Injury
Fund, Injury No. 09-108286
The claimant, a 65-year-old warehouse worker,
sustained an injury to his back on October 27, 2009 while working for the
employer. He treated on his own and
underwent physical therapy and an injection.
The claimant sustained a prior low back injury in
1998, which was settled for 11% PPD of the body referable to the lumbar
spine. Dr. Levy evaluated the claimant
and opined that he had 30% PPD to the body in 1998. It is not clear whether the claimant
underwent surgery for the 1998 injury, but he testified he was forced to leave
his job in security because he could no longer perform the physically demanding
job duties. He also testified that he
was unable to return to work for two years and continued to have intermittent
low back pain leading up to his primary injury.
The claimant was evaluated by Dr. Volarich, who
testified that he sustained 35% PPD to the body as a result of his primary
injury and was PTD as a result of a combination of his 1998 and 2009 back
injuries. Vocational experts Mr.
Weimholt and Mr. Cordray agreed with Dr. Volarich. Mr. England testified on behalf of the Fund
and opined that he was employable, although he agreed that the 1998 injury was
a hindrance to his employment.
At a hearing, the ALJ found the claimant PTD as a
result of a combination of his pre-existing low back injury and his primary
injury and ordered the Fund to pay PTD benefits. The ALJ also found the employer responsible
for 20% PPD of the body, past medical expenses, and future medical care. On Appeal, the Commission affirmed the ALJ’s
decision and Award.
Fund Not Liable for PTD Benefits Because
Claimant PTD As a Result of Her Pre-Existing, Non-Work-Related Low Back
Condition Considered Alone
Glasco vs. Treasurer of the State of
Missouri Custodian of the Second Injury Fund, Case No. WD80186 (Mo. App. 2017)
FACTS: On April 27,
2011, the claimant fell at work and injured her left knee and was diagnosed
with a strain. She treated with the
employer’s doctors and ultimately resolved her claim against the employer for
15% PPD of the knee.
The claimant had a significant pre-existing and
non-work-related condition in her low back, for which she treated with Dr.
Drisko. She underwent multiple back
surgeries prior to 2008 and then a fusion.
She was diagnosed with failed back syndrome and was referred to a pain
specialist and psychiatrist. She was
subsequently diagnosed with “Transition Syndrome” after she developed stenosis
over the site of her prior surgery. She
underwent additional injections. Dr.
Drisko took her off work in May 2010 for her low back condition, and she did
not return to work until April 12, 2011, at which time she returned to work
with restrictions. She then only worked
two weeks for the employer prior to sustaining her primary injury.
The claimant filed against the Fund for PTD
benefits. Dr. Zimmerman, the claimant’s
expert, opined she was PTD as a result of a combination of her primary injury
and pre-existing conditions. However, he
did not review all of the claimant’s prior medical records and did not have a
complete history of her prior treatment and disability. Mr. Dreiling also testified on behalf of the
claimant, and on cross-examination, he admitted that even assuming that her
left knee was fine, she would be virtually unemployable due to her back
condition. Dr. Drisko testified that she
was PTD due to her progressive back problems alone.
At a Hearing, the ALJ found the Fund liable for PTD
based on the combination of the claimant’s primary injury and pre-existing
disabilities. On Appeal, the Commission
reversed and found that the Fund was not liable because the claimant was PTD as
a result of her pre-existing low back condition, considered alone.
HOLDING: The claimant
appealed to the Court, which affirmed the Commission’s Award and Decision to
deny benefits against the Fund. It held
that questions of employability and when a claimant becomes permanently and
totally disabled are issues of fact within the province of the Commission, and
it deferred to the Commission’s factual findings in this case.
Fund Liable
for PTD Because Claimant Unemployable Due to Primary Injury Combined with
Pre-Existing Right Leg Injury, Anxiety/Depression, and Need to Lie Down
Throughout Day
Johnson vs. Direct TV Home Services
and Treasurer of Missouri As Custodian of Second Injury Fund, Injury No.
12-100647
The claimant, a 48-year-old satellite technician, did
not graduate high school or obtain a GED.
On December 19, 2012, he fell in a customer’s yard and sustained
injuries to his right foot, right buttock, and low back. He underwent injections, and Dr. Rahman
ultimately performed a microdiscectomy at L5-S1. He was released from treatment on December
17, 2013.
The claimant had pre-existing injuries. When he was two years old, he severed the
muscles in his right leg below his buttocks, which required surgery. However, a nerve was nicked and resulted in
paralysis of the right leg, which necessitated multiple additional surgeries
and additional medical treatment over the next 10-12 years. Due to this condition, he developed anxiety
and began taking Xanax when he was 35.
His right leg never regained full function and mobility and he could not
rotate his right ankle. His pre-existing
conditions affected his employment prior to 2012. He was fired from a construction job because
he was unable to climb on a roof without decking. He also had to stand on cardboard or mats
while working as a welder, worked slower, and took more breaks as a result of
his pre-existing injuries. He was not
able to continue working as a truck driver after he began taking anti-anxiety
medications. He also had difficulty
keeping his right foot on the gas pedal for extended periods of time due to his
right leg and foot injury. Even while
working for the employer, he had trouble climbing on roofs and balancing on
ladder rungs prior to his 2012 accident.
The claimant’s attorney had him evaluated by Dr. Paul,
who recommended permanent work restrictions, including no significant climbing,
balancing, stooping, bending, kneeling, crouching, or crawling and that the
claimant be able to lie down during the day.
He opined the claimant was PTD as a result of his work accident in
combination with his pre-existing conditions.
Mr. Eldred, a vocational rehabilitation specialist, also opined that he
was unemployable as a result of his work accident and pre-existing conditions. He believed that the claimant’s need to lie
down during the day would negate employment.
At a Hearing, the ALJ found the clamant to be PTD as a
result of his work accident in combination with his pre-existing disabilities
and ordered the Fund to pay PTD. The ALJ
noted prior accommodations and limitations the claimant had as a result of his
pre-existing disabilities for his 2012 work accident and also found the
testimony of Dr. Paul and Mr. Eldred to be persuasive on the question of
PTD. On Appeal, the Commission affirmed
the ALJ’s decision and Award.
Commission
Decision Finding Fund Liable for PTD Benefits Supported by the Record Because
Claimant’s Expert Testified He Was PTD and Employer’s Expert Testified He Had a
Pre-Existing Disability
Barnes vs. Treasurer of Missouri as
Custodian of Second Injury Fund and Park Express LLC, Case No.
ED105508 (Mo. App. 2017)
FACTS: The claimant
worked for the employer, an airport parking and shuttle company, and on
November 11, 2009, while changing a tire on his shuttle bus, he sustained an
injury to his lower back. He underwent
injections and physical therapy and was released from care by Dr. Doll without
restrictions. The claimant subsequently
treated on his own with Dr. Wilkey, who performed a two-level lumbar fusion at
L4-5 and L5-S1. He recommended permanent
restrictions that included taking a break to recline for 15 minutes every two
hours, ongoing narcotic pain medication, and possibly missing work up to twice
a month. The claimant had not returned
to work since his 2011 surgery and was terminated by the employer when he was
unable to return to work full duty.
The claimant suffered a prior low back injury in May
2000 and underwent surgery at L5-S1 in September 2000, including a right-sided
laminectomy and discectomy. He returned
to work without permanent restrictions and settled that claim for 25% of the
body referable to the lower back.
The claimant’s experts, Dr. Wilkey and Mr. Kaver,
testified that the claimant was unemployable and PTD as a result of his 2009
work injury alone. The employer’s
expert, Dr. Lange, assessed 15% PPD of the body due to the 2009 injury and 25% PPD
of the body from his prior injury in 2000.
Dr. Lange concluded that the claimant’s 2009 work accident was not the
prevailing factor in causing his disability at L5-S1. Rather, his prior injury in 2000 was the
prevailing factor in causing his disability.
At a Hearing, the ALJ found the claimant PTD as a
result of his last work injury alone. On
Appeal, the Commission modified the Award and found the Fund liable for PTD
benefits as the claimant was PTD as a result of his last work injury in
combination with his pre-existing low back injury.
HOLDING: The Fund
appealed and argued that the Commission substituted its own determination of
medical causation, which was unsupported by medical expert testimony because
there was no single medical expert that testified that the claimant was PTD as
a result of a combination of primary injury and pre-existing disabilities. The Court found that the Commission’s
decision was supported by the record because the claimant’s experts testified
that the claimant was permanently and totally disabled, and the employer’s
expert testified that there was pre-existing permanent disability to the
claimant’s low back. It held that there is no requirement that
a single expert’s testimony wholly support the Commission’s determinations of
both causation and the nature and extent of disability. The Court deferred to the Commission’s
factual findings and affirmed the
Commission’s decision and Award.
Claimant Not Entitled to Enhanced Benefits Under
287.200.4(3), Because Employer Went Out of Business More Than Fifteen Years
Prior to When the Statute Became Effective on January 1, 2014 and Could Not
Have Elected to Accept Mesothelioma Liability
Hegger (Deceased) vs. Valley Farm Dairy Co., Injury No. 14-103079
The claimant
worked for the employer from 1968 until 1984, during which time he was exposed
to asbestos. The employer went out of
business in 1998. The claimant worked
for subsequent employers, but he credibly testified he was not exposed to
asbestos during that employment. The
claimant was diagnosed with mesothelioma in 2014 and died as a result on June
7, 2015.
At a Hearing,
the ALJ addressed the sole issue of enhanced benefits under Section
287.200.4(3). The ALJ found that the
claimant was last exposed to asbestos while working for the employer, and his
exposure was the prevailing factor for his diagnosis of mesothelioma which
resulted in his death. However, neither
of the insurers who insured the employer during the claimant’s dates of
employment were liable for paying enhanced benefits because the enhanced
benefits provision did not go into effect until January 1, 2014. The employer could not possibly have elected
to be held liable for the same, because it went out of business in 1998. Also, insuring its liability for occupational
diseases in 1984 did not qualify as electing to be liable for enhanced
benefits, which are separate and in addition to benefits otherwise payable for
an occupational disease. Therefore, the
claimant was not entitled to enhanced benefits.
On Appeal, the Commission affirmed and adopted the ALJ’s decision and
Award.
|